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BAPCPA changed much of this law. Post-BAPCPA, amended Code § 365(d)(4) requires debtors to assume or reject nonresidential real property leases within 120 days of the petition. More importantly, however, new § 365(d)(4)(B) provides that that period may only be extended for 90 days (unless the lessor consents to further extension), and such extension must be granted prior to expiration of the initial 120-day period.
Pre-BAPCPA courts had identified various factors that must be considered in deciding a motion to extend the time to assume or reject.122 Landlord objections to long or omnibus extensions123 may be repeated in the context of considering the 90 day extension, or may not be heard again at all.
At least one circuit has held that it is not necessary for a debtor to come current on a lease before the court may enter an order for an extension of time to assume,124 and another has held that a debtor need not cure prepetition defaults in order to exercise a renewal option prior to assumption of the lease. 125
X. EXTENSIONS OF EXCLUSIVITY
In many large chapter 11 cases, within about 90 days of the filing the debtor will want to move to extend its exclusive right to file a plan of reorganization under Code § 1121. This requires a showing of "cause," but the cause requirement has been referred to as a standard intended to give bankruptcy courts "maximum flexibility to suit various types of reorganization
122 In re Victoria Station, Inc., 88 B.R. 231, 236 (9th Cir. BAP 1988), aff'd, 875 F.2d 1380 (9th Cir. 1989); In re Burger Boys, Inc., 94 F.3d 755, , 761 (2nd Cir. 1996), following In re Theatre Holding Corp. v. Mauro, 681 F.2d 102 (2nd Cir. 1982)(decided prior to the BAFJA 1984 amendment) and In re Wedtech Corp., 72 B.R. 464, 471 (Bankr. S.D.N.Y. 1987); In re Ernst Home Center, Inc., 209 B.R. 974 (Bankr. W.D. Wash. 1997).
Sea Harvest Corp. v. Riviera Land Co., 868 F.2d 1077, 1079 (9th Cir. 1989).
124 In re Burger Boys, Inc., 94 F.3d 755 (2nd Cir. 1996).
125 In re Circle K Corp., 127 F.3d 904 (9th Cir. 1997).
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